Karnataka High Court
Umakanth Nagamarapalli vs The State Of Karnataka & Anr on 1 July, 2019
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION No.200656/2019
BETWEEN
UMAKANTH NAGAMARAPALLI
S/O GURUPADAPPA NAGAMARAPALLI
AGE: 55 YEARS
R/O BIDAR TQ & DIST: BIDAR
... PETITIONER
(BY SRI. A. M. NAGRAL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH THE PSI MARKET PS
BIDAR REP. BY THE ADDL. STATE PUBLIC
PROSECUTOER HIGH COURT OF
KARNATAKA, KALABURAGI BENCH-585103
2. DR.RAVINDRAKUMAR BHORE
FLYING SQUAD, BIDAR 50.
... RESPONDENTS
(BY SRI. P.S.PATIL, HCGP FOR R1)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
ALLOW THIS CRL.PETITION AND THEREBY QUASH THE
CHARGESHEET DATED 20.10.2018 PROCEEDINGS IN CRL.CASE
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NO.3143/2018 (CRIME NO.85/2018 OF MARKET POLICE
STATION BIDAR) PENDING ON THE FILE OF THE I ADDL.CIVIL
JUDGE AND JMFC-II, IDAR COURT, BIDAR FOR THE OFFENCES
PUNISHABLE U/SEC.171 (H), 188, 283 R/W 149 OF IPC AND
ORDER DATED 29.10.2018 TAKING COGNIZANCE BY THE
LEARNED MAGISTRATE AGAINST THE PETITIONER.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 Cr.P.C. to quash the charge sheet dated 20.10.2018 in Criminal Case No.3143/2018 arising out of Crime No.85/2018 of Market Police Station, Bidar, pending on the file of I Additional Civil Judge and JMFC, Bidar for the offences punishable under Sections 171-H, 188, 283 read with Section 149 IPC and the order dated 29.10.2018 for taking cognizance.
2. The facts leading to this petition are that on the complaint filed by Doctor Ravindrakumar, Incharge Deputy Director, Department of Animal Husbandry and Flying Squad, Bidar, who was on election duty, the 3 respondent police have registered the case. The allegations are that on 16.04.2018 in the evening hours, the complainant along with police officials had gone on patrolling duty for monitoring the election activities. When they came near Ambedkar Circle, the petitioner and few others were shouting slogans to support the BJP candidate Umakanth Nagamarapalli. Thereby, they have violated the election code of conduct.
3. Heard learned counsel for the petitioner and the learned High Court Government Pleader for the respondent.
4. The main grievance of the petitioner is that the order passed by the learned Magistrate for taking cognizance and charge sheet filed by the police are contrary to law and in procedure prescribed under Sections 155(2) and 195 Cr.P.C. Thus, the proceedings initiated against the petitioner requires to be quashed. 4
5. In support of his contentions, he has relied on the following decisions:
1. M.S.Ahlawat vs. State of Haryana and Another [(2000) 1 SCC 278]
2. Sachida Nand Singh and Another vs. State of Bihar and Another [(1998) 2 SCC 493]
3. 2018(4) Kar. L.J 695 in the case of Thipparaju vs. State of Karnataka
4. 2018(1) Kar.L.J. 469 in the case of Dr.K.P.Gopal Krishna vs. H.Hariyappa, Sub-Inspector, Jeevanbheema Nagar, Police Station, Bengaluru and Another
5. ILR 2018 KAR 369 in the case of Sri F.J.M.Crasta vs. The State of Karnataka by its Secretary, Education Department and Others
6. Per contra, learned High Court Government Pleader submitted that the order passed by the learned Magistrate is in accordance with law. There are valid grounds to interfere with the said order and to quash the proceedings.5
7. In the present case, the Government Official who was on election duty has filed a complaint directly to the police instead of filing a private complaint before the learned Magistrate as prescribed under Section 195 Cr.P.C.
8. Section 195 of Cr.P.C. reads as under:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"6
9. In the case of Thipparaju (supra) observed as under:
14. The provisions of Section 2(d) of Cr.P.C.
defines the 'complaint' which reads as under:
"2(d) "Complaint" means any
allegation
made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
15. Admittedly, in the present case, the public servant has not lodged any complaint before the jurisdictional Magistrate in writing as contemplated under Section 195 of Cr.P.C. being mandatory and there being non-compliance, the Magistrate has committed illegality in taking cognizance of the offences i.e., without the complaint being made to 7 him in writing by the public servant concerned.
16. This Court in identical circumstances in the case of Sri Manikanta v. State of Karnataka and Others, in W.P.No.23611 of 2015, dated 16.06.2015, wherein also the police have registered a case in Crime No.167 of 2014 for the offences punishable under Sections 78 and 79 of the Karnataka Police Act and also under Section 188 of IPC. This Court has come to the conclusion that the registration of case under Section 188 of IPC becomes illegal as bar contained under Section 195 of Cr.P.C. held that the remaining provision under Sections 78 and 79 of the Karnataka Police Act could not have been investigated by the police without a valid permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C.
Therefore, this Court has quashed the proceedings.
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10. In the case of Dr.K.P.Gopal Krishna (supra) observed as under:
"In this regard, Section 195 of Cr.P.C. clearly indicates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. These provisions, in fact, have not been looked into by the learned Magistrate before passing the impugned Order. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction to issue summons against the accused. This type of order passed without looking into the law should be deprecated, such Officers shall be properly trained in the Judicial Academy often calling them for training. The 9 Learned Magistrate who has passed the order should have gone through the provisions under Section 188 of IPC and 195 of Cr.P.C. before issuing any process. Calling a person to the Court by issuing summons or warrant, is a very serious act of the Court. If unnecessarily or without any law, any orders are passed, it virtually creates a paralytic stroke to the legal right of a person. The court cannot have any exception that due to some oversight or due to some pressure of work, such act has been done. Such explanation is not acceptable in the judicial system. It is the duty of the learned Magistrate before taking cognizance of the offence to go through the contents of the charge sheet or private complaint. First they have to ascertain whether any offence has been constituted after analyzing the averments made in the charge sheet. Secondly, they have to ascertain as to whether the court has got jurisdiction to entertain the charge sheet. Thirdly, whether there is any legal impediment to take cognizance as to 10 whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India."
11. In the case on hand, the records discloses that on the basis of the complaint, the Government official who was on election duty, the police have registered the case and have conducted the investigation for the aforesaid offences. The learned Magistrate has taken cognizance without going through the contents of charge sheet and procedure followed by the police. Admittedly, the Government official being a public servant has lodged a complaint before the police instead of filing the same before the Magistrate. Therefore, initiation of proceedings on the basis of the complaint filed by the returning officer and the 11 cognizance taken by the Magistrate cannot be sustained in law.
12. So far as the charge under Section 283 IPC is concerned, there are no specific allegations in the complaint filed by the election officer that this petitioner and others have committed wrongful acts to cause danger, obstruction or injury to any person in any public way etc. Even the punishment prescribed for this offence is Rs.200/-, which is cognizable offence. The allegations made in the complaint do not attract the ingredients of Section 283 IPC. But, there is no material on record to show that the petitioner has committed the offence under Section 283 IPC as such continuation of proceedings would be futile exercise by the Court.
13. For the forgoing reasons, this Court is of the view that there are valid grounds for quashing the entire proceedings. Hence, I proceed to pass the following: 12
ORDER The petition is allowed.
The proceedings initiated in Criminal Case No.3143/2018 arising out of Crime No.85/2018 and entire charge sheet are quashed.
In view of disposal of main petition, I.A.1/2019 for stay does not survive for consideration. Accordingly, dismissed.
Sd/-
JUDGE Srt